New Chemicals Proposed for Addition to California’s Proposition 65 List

By Katherine M. Rahill, Partner, Jenner & Block

In December and January, the California Environmental Protection Agency's Office of Environmental Health Hazard Assessment ("OEHHA") announced its intent to add seven new chemicals to the Proposition 65 chemicals list:

The Safe Drinking Water and Toxic Enforcement Act of 1986, otherwise known as Proposition 65, requires the State of California to publish a list of chemicals determined by the State to cause cancer or reproductive toxicity. There are four mechanisms by which a chemical can be determined to cause cancer or reproductive toxicity sufficient to require listing: (1) either the Carcinogen Identification Committee or the Developmental and Reproductive Toxicant Identification Committee, independent committees of scientists and health professionals that are part of OEHHA's Science Advisory Board, make a determination that there is sufficient evidence that the chemical causes cancer or reproductive impacts; (2) an authoritative body such as the International Agency for Research on Cancer, the National Toxicology Program, or the U.S. Environmental Protection Agency identifies the chemical as causing cancer or reproductive impacts; (3) a state or federal agency requires the chemical to be labeled as causing cancer or reproductive impacts; or (4) the chemical meets certain criteria and is identified in the either of two provisions of the California Labor Code as causing cancer or reproductive impacts. The listing of a chemical generally imposes two obligations on businesses that use that chemical: (1) businesses must provide a warning before exposing anyone to a chemical on the Proposition 65 chemicals list; and (2) businesses must prevent the discharge of listed chemicals into sources of drinking water.

Of the seven chemicals for which OEHHA has published Notices of Intent to list in the last two months, five of the chemicals are being listed through the California Labor Code mechanism, four chemicals as a result of findings that the chemicals are carcinogenic (Benzophenone, Coconut oil diethanolamine condensate, Diethanolamine, and 2-Methylimidazole) and one chemical for evidence of developmental toxicity (Methyl isopropyl ketone). The other two chemicals are proposed for listing through the authoritative body mechanism as a result of U.S. EPA studies concluding they are capable of causing cancer (Kresoxim-methyl and Tetraconazole). A comment period was provided by OEHHA for the listing of these chemicals. Once the comment periods have ended (some of which have expired already), OEHHA will then make a final determination and publish a revised Proposition 65 list, no sooner than 60 days after the publication of the Notices of Intent.

In addition to the proposed addition of these seven chemicals to the Proposition 65 chemicals list, OEHHA also announced the selection of two chemicals (deltamethrin and xylene) for consideration by the Developmental and Reproductive Toxicant Identification Committee. The Committee will undertake a review of existing scientific evidence regarding the potential for these two chemicals to cause reproductive impacts. With the announcement of the selection of these chemicals, OEHHA requested the public provide information relevant to the Committee's review.

OEHHA's Notices of Intent to list new chemicals can be found by clicking here and Requests for Information can be found by clicking here.